On 15 September, the Office of the Prosecutor of the International Criminal Court issued a policy paper on case selection and prioritization which might result in business and human rights violations being prosecuted at the International Criminal Court in the near future. When it comes to assessing the gravity of crimes (which has always been one of the case selection criteria) the document highlights that:
The impact of the crimes may be assessed in light of, inter alia, the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities. In this context, the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land. [para. 41]
Formally, there is no change in the subject-matter jurisdiction of the Court, which remains genocide, crimes against humanity, war crimes and the crime of aggression. However, the policy paper is important from a business and human rights perspective because it may result in acts the Court previously considered irrelevant now being considered relevant either as contextual elements or as material elements of crimes against humanity.
The ICC statute defines crimes against humanity as “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Those acts include “deportation or forcible transfer of population” and “persecution against any identifiable group or collectivity on (…) racial, national, ethnic, cultural, [and] religious (…) grounds (….).”
It is well documented that land grabs, the exploitation of natural resources and environmental damage tend to primarily victimize already marginalized communities such as indigenous communities and other minorities. The exploitation of natural resources, for example, can result in forcible transfers of population in order to free up the space for corporations. Moreover, the International Criminal Court’s definition of crimes against humanity does not require those crimes to be committed in the context of an armed conflict. It only requires a “widespread and systematic attack directed against a civilian population”, which may or may not include acts of physical violence. A mass eviction, for example, could be considered an attack for the purposes of the Statute even if no blood is shed. Hence the law is already in place to allow prosecutions for crimes against humanity on those grounds.
However, until now, the International Criminal Court, as indeed other international criminal tribunals, had considered that those crimes were not serious enough. Instead they had focused their attention on crimes falling more neatly within the traditional remit of international criminal law. Those crimes tend to be committed in times of armed conflict, although this is not a formal requirement for the commission of genocide and crimes against humanity.
This new policy document, therefore, is of paramount importance for the field of business and human rights. It means that governmental officials and, if relevant, corporate officials engaging in activities such as land grabs and the exploitation of natural resources are now fair game in The Hague.